• Company claim of directors’ liability and the individual shareholder’s claim

    The title originates from a legislative comparison between the rules governing the liability of directors which are apparently very different in the two most common types of Italian legal entities. Indeed, it is well known that the legislator of the 2003’ reform, structuring limited liability companies’ (S.r.l.) directors liability, on the one hand, has exalted […]

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  • Restrictive contract clauses within the discipline of Consumer Code

    The Court of Cassation recently, on April 28, 2020, expressed a principle on restrictive contract clauses and consumer contracts according to which “in the case of contracts drawn up unilaterally by the trader, two requirements for the validity of restrictive clauses have to be met. The first requirement concerns direct knowledge of the clause derogating […]

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  • Procedure for the recognition and enforcement of foreign arbitral awards

    It is a controversial question in doctrine and jurisprudence whether the decree of recognition of the foreign arbitral award issued pursuant to Article 839 of the Italian Civil Procedure Code (c.p.c.) attributes enforceable effectiveness to the award, or whether the latter, in order to become enforceable, must await the expiry of the deadline for objection […]

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  • Registered merger transaction may not be challenged for procedural irregularity

    All merger transactions under the Italian law shall follow the procedure set out in the Italian Civil Code. The final step of the procedure is the registration of the merger deed in the companies register, and according to article 2504 quater of the Italian Civil Code (I.C.C.), such a registration blocks challenges and disputes over […]

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  • Right to health, contact tracing and privacy

    Since the declaration of a state of emergency on 31st January, privacy has been at the center of the debate. the adoption of measures of an extraordinary and urgent nature is justified by the need to safeguard the collective interest in public security, including the protection of the personal data of natural persons. The right […]

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  • Misappropriation of company’s files

    The Court of Cassation has recently confirmed the charges for the crime of embezzlement with reference to the conduct of an employee who, after his resignation – followed by the hiring at a new company, operating in the same sector – had returned the company’s notebook with the hard disk formatted, taking possession of the […]

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  • Denied access to the composition with creditors for companies deleted from the commercial register

    With a recent ruling (S.C. n.4329/2020), the Supreme Court once again addressed the issue of the relationship between the cancellation of the company from the register of companies (by the Article 2495 of the Civil Code), whose bankruptcy is requested within one year of cancellation (Article 10 of the Bankruptcy Law), and the access to […]

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  • European Commission: use of the framework on public procurement during the emergency

    The emergency situation related to the COVID-19 crisis requires that public buyers in the Member States have to ensure goods and services to deal with such emergency at very short notice. The European public procurement framework provides all necessary options for the purchase as quickly as possible of supplies, goods, and services of first necessity. […]

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  • Put option: Supreme Court explains the relationship with the so-called “patto leonino”

    The Supreme Court states the validity of a put option clause which is negotiated in a private equity deal with which a shareholder (usually the entrepreneur) undertakes to purchase, in a given time period, the shares of the other shareholder (the investor) at a predetermined price. Such price aims to indemnify the investor against entrepreneurial […]

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  • Defamatory publication: the proof of the damage to a person’s reputation is mandatory

    The reputation’s damage suffered by a person as a result of a defamatory article does not exist “in re ipsa”, and must therefore be proved by the person seeking compensation. Since the damage is often intangible, the use of prognostic assessments and presumptions is permitted, as long as they are based on objective elements, which […]

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  • Shareholders loan repayment: general journal entries as evidence

    According to a recent decision by the Italian Supreme Court, general journal records are documentary evidence admissible in court, but such records alone are not enough to prove the debit of the company to be real. There should also be further evidence to establish a point put forward by a shareholder (in order to prove […]

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  • Liquidation Trust: disputes relating applicable taxes

    The Supreme Court of Cassation through Sentence no. 5766 of 3 March 2020 affirmed that donation tax can also be applied to liquidation trust only in certain cases. -If the contracting parties want the real and final transfer of the shares and related rights to the trustee and the consequent real enrichment of the beneficiary, […]

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  • The withdrawal from partnership of limited company with an excessively long duration

    The Italian Supreme Court with the ruling number 4716 of the last 21st of February has stated on the exercise of the right of withdrawal in the corporate area, in particular with regard to a joint-stock company whose duration had been fixed until 31st December 2100 and whose Articles of Partnership expressly excluded the right […]

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  • Merger leveraged buyout

    Merger leveraged buyouts (MLBO) are regulated by art. 2501-bis of the Civil Code: these are mergers of companies following transactions of leveraged buyouts (LBO). LBOs are acquisitions of another company (target) using a significant amount of borrowed money to meet the cost of acquisition; the assets of the acquired company are often used as collateral […]

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  • Limits of the liquidator’s liability to unsatisfied corporate creditors

    When should the liquidator of a limited liability company be liable to unsatisfied creditors of the company after the striking off the company from the Commercial Register? At the beginning of 2020, the Judges of the Court of Cassation gave a comprehensive answer to this question. By means of the order no. 521 of 15 […]

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  • The S.r.l. shareholder cannot be excluded if in arrears in the subscription of the company capital increase

    The Italian Supreme Court with the ruling number 1185 of the last 23rd of January has stated that, under art. 2466 of the civil code, the S.r.l. shareholder holding the quota starting from the company incorporation cannot be excluded from the company if she is in arrears in the execution of the payments following the […]

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  • The employer according to legislative decree 81/2008 (“Testo Unico Sicurezza”)

    The identification of the employer is not always a matter of easy solution, since, especially within companies with complex structures, it is possible to identify multiple subjects assigned to satisfy the position of guarantee assumed by the person who, according to the Testo Unico Sicurezza, has the qualification of employer. The purpose of this study […]

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  • Art. 2476, par. 2, of Italian Civil Code and holding companies. Between legitimate enforcement of the right and abuse of it.

    It is well known that article 2476, paragraph 2, of the Italian Civil Code, provides the right of the quota holder of a limited liability company to ask information about the business of the company and to make inspections in order to verify the related documentation. The enforcement of such right, with the only limitation […]

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  • The protection of privacy in the Data Protection Authority’s measures in 2019.

    With the RGPD on the protection of personal data, the subject of privacy has encountered a strong and new awareness that arises from precise requirements of legal certainty, harmonization and greater simplicity of the rules regarding the transfer of personal data within the European Union and beyond. The RGPD has also foreseen the establishment of […]

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  • Consob publishes its final Report on ICO

    On 2nd January, the Italian Companies and Exchange Commission (“Consob”) published the final report (hereafter the “Report”) on the initial coin offers (the ICOs) and the exchanges (IEOs) of crypto assets (the so-called tokens) which constitute one of the numerous ways in which the distributed ledger technology (DLT) and also blockchain technology. These technologies, pointed-out […]

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